Proponents' Reply Letter to CA Supreme Court

8/7/2019 Proponents' Reply Letter to CA Supreme Court

1/7

Cooper & KirkLawyersA Professional Limited Liability Company1523 New Hampshire Avenue, N.W.

Charles J. Cooper Washington, D.C. 20036 (202) [email protected] Fax (202) 220-960 I

FEDERAL EXPRESSFebruary 4, 2011

Office of the ClerkSupreme Court of California350 McAllister StreetSan Francisco, CA 94102-4783Re: Perry v. Schwarzenegger (Hollingsworth)

Supreme Court Case No. S189476To the Honorable Justices of the Supreme Court of California:

Pursuant to California Rule of Court 8.548(e)(2), Defendant-Intervenor-AppellantsDennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Mark A. Jansson, andProtectMarriage.com (collectively, "Proponents") submit this letter in response to the letterssubmitted by Plaintiffs and Plaintiff-Intervenor City and County of San Francisco ("SanFrancisco") addressing the Ninth Circuit's January 4,2011 Order Certifying a Question to theSupreme Court of California ("Order"). As detailed in our opening letter, the question posed bythe Ninth Circuit is properly certified to this Court and presents issues of fundamentalimportance to the integrity of the State's initiative process. See also PLF Ltr. 6 ("the right ofinitiative sponsors to defend their measures in court is of paramount importance to thevindication of the initiative power"). Contrary to Plaintiffs' and San Francisco's submissions,this Court should accept the certification request and answer the certified question as formulatedby the Ninth Circuit.

1. The certified question presents two issues: whether, under California law, the officialproponents of an initiative measure possess (l) a particularized interest in the initiative's validity,and/or (2) the authority to assert the State's interest in the initiative's validity. Plaintiffs arguethat certification is not warranted with respect to the first issue because they claim it presents "amatter of federal law ... governed exclusively by Article III of the United States Constitution."PI. Ltr. 3. And Plaintiffs argue that certification is not warranted with respect to the second issuebecause they claim that "it is already well-settled under California law that initiative proponentsdo not possess the authority to represent the State's interest .. . regarding an initiative's validity."Id. (emphasis omitted). Plaintiffs are wrong on both fronts.

2. We of course do not dispute that Article III standing is ultimately an issue of federallaw. But as we explained in our opening letter, while Article III requires a concrete andparticularized interest, the question whether such an interest exists in any given case may tum onState law. In particular, such an interest may have its source in legal rights and responsibilities
http:///reader/full/ProtectMarriage.comhttp:///reader/full/ProtectMarriage.com


2/7

Supreme Court of CaliforniaFebruary 4, 2011Page 2 of5created by State law. See Diamond v. Charles, 476 U.S. 54,66 n.17 (1986) ("The IllinoisLegislature, of course, has the power to create new interests, the invasion of which may conferstanding."); see also Lujan v. Defenders ofWildlife, 504 U.S. 555,578 (1992) ("the injuryrequired by Art. III may exist solely by virtue of statutes creating legal rights, the invasion ofwhich creates standing") (quotation marks and ellipses omitted); id at 580 (Kennedy, J.,concurring) ("Congress has the power to define injuries and articulate chains of causation thatwill give rise to a case or controversy where none existed before."); Havens Realty Corp. v.Coleman, 455 U.S. 363, 373 (1982) ("the actual or threatened injury required by Art. III mayexist solely by virtue of statutes creating legal rights, the invasion ofwhich creates standing")(quotation marks omitted); Warth v. Seldin, 422 U.S. 490, 500 (1975) (same).

The question whether initiative proponents have under California law a concrete andparticularized interest in the validity of an initiative that is distinct from the interest of the publicat large is thus directly relevant to, and likely dispositive of, Proponents' Article III standing todefend their own interests in Proposition 8 in federal court. Indeed, Plaintiffs embraced thisposition before the Ninth Circuit, arguing that "Proponents' claim of standing .. . rises or falls onthe strength of their assertion[] that ... California law creates a particularized interest in initiativeproponents." PI. Br. 30-31 (emphasis added).

Before this Court, however, Plaintiffs have reversed course, arguing now that "Californialaw has no bearing" on the question of Proponents' standing, PI. Ltr. 5, citing DaimlerChryslerCorp. v. Cuno, 547 U.S. 332 (2006) and Raines v. Byrd, 521 U.S. 811 (1997). Neither casesupports Plaintiffs' new-found stance.

In DaimlerChrysler, the United States Supreme Court held that Ohio residents lackedstanding to challenge state tax breaks given to DaimlerChrysler. But the plaintiffs in that casedid not assert that Ohio law gave them an interest in the suit distinct from their fellow Ohioans.To the contrary, they "principally claim[ed] standing" simply "by virtue of their status as Ohiotaxpayers." !d. at 342.And in Raines, the Court held that members of Congress lacked standing to challenge theconstitutionality of the Line Item Veto Act, despite the fact that the Act provided that "anyMember of Congress ... may bring an action, in the United States District Court for the District

of Columbia, for declaratory judgment and injunctive relief on the ground that any provision ofthis part violates the Constitution." 521 U.S. at 815-16 (quotation marks omitted). But the Actplainly did not create a concrete and particularized interest that its own enactment threatened,and the case thus stands for the unremarkable proposition that Congress cannot do an end-runaround Article III by bestowing a right to sue upon a party that has suffered no judiciallycognizable injury. See id at 820 n.3 ("It is settled that Congress cannot erase Article Ill'sstanding requirements by statutorily granting the right to sue to a plaintiff who would nototherwise have standing. "); id. at 829 (plaintiff members of Congress "alleged no injury tothemselves as individuals" and "the institutional injury they allege[d] [was] wholly abstract andwidely dispersed") (emphasis added).


3/7

Supreme Court of CaliforniaFebruary 4, 2011Page 3 of 5

3. Turning to the second issue-Proponents' authority to assert the State's interest in aninitiative's validity-Plaintiffs' claim that In re Marriage Cases answered the question in thenegative is patently wrong, for the relevant party in that case was not the official proponent ofthe challenged initiative. Plaintiffs claim that the Proposition 22 Legal Defense & EducationFund (the "Fund") was "representing the proponent of that initiative," PI. Ltr. 6, but theCalifornia courts expressly rejected the Fund's argument that it should be treated as theproponent, holding that "the Fund itself played no role in sponsoring Proposition 22 because theorganization was not even created until one year after voters passed the initiative." City andCounty ofSan Francisco v. Proposition 22 Legal Del & Educ. Fund, 128 CaI.App.4th 1030,1038 (2005). Accordingly, the Court of Appeal squarely held that "this case does not present thequestion of whether an official proponent of an initiative (Elec. Code, 342) has a sufficientlydirect and immediate interest to permit intervention in litigation challenging the validity of thelaw enacted." Id. (emphasis added).

This Court 's subsequent decision in In re Marriage Cases cited the holding in City andCounty ofSan Francisco with approval, see 183 P.3d at 406, n.8, and accordingly treated theFund's interest as merely one of advancing "an advocacy group's strong political or ideologicalsupport of a statute or ordinance-and its disagreement with those who question or challenge thevalidity of the legislation . ... " Id. at 405. Thus, "the Fund is in a position no different from thatof any other member of the public having a strong ideological or philosophical disagreementwith" a challenge to a measure it supports, and accordingly, this Court held that the Fund lackedstanding to maintain a declaratory judgment action regarding the scope or validity of Proposition22. Id. at 406.

Contrary to Plaintiffs' submission, at no point in its opinion did this Court even hint thatthe Fund "represent[ ed] the proponent" of Proposition 22, PI. Ltr. 6, much less was an "initiativeproponent[]," as Plaintiffs imply, id. Indeed, although Plaintiffs attempt to obscure this point byquoting from the Fund's petition to this Court in which it sought to align itself with theproponents of Proposition 22, see id, at oral argument before the Ninth Circuit Plaintiffs' counselwas forced to concede that the Fund was not the proponent:Plaintiffs' Counsel: ... [T]he California Supreme Court said in the Proposition22 litigation that ... [proponents] do not have standing.Judge Reinhardt: They said that proponents don't have standing?Plaintiffs' Counsel: Proponents do not ... have standing. For example, in theProposition 22 case, the fund that was involved -Judge Reinhardt: But they weren't the proponents, were they?Plaintiffs' Counsel: Well, they were put forward as the proponents.


4/7

Supreme Court of CaliforniaFebruary 4,2011Page 4 of5

Judge Reinhardt: But that doesn't fool the Court. They were not the proponents. Plaintiffs' Counsel: They were not the proponents. They were not strictly theproponents, your Honor.Judge Reinhardt: I don't know what "strictly" means. They were not theproponents.Plaintiffs' Counsel: They claimed to be the proponents.Judge Reinhardt: But they were not.Plaintiffs' Counsel: I don't think they were.

Oral Argument at 45:53, Perry v. Schwarzenegger, No. 10-16696 (9th Cir. Dec. 6,2010).It is thus plain that this Court's treatment of the Fund did not even implicate thequestion of proponents' authority to represent the State's interest in the validity aninitiative, much less definitively resolve it. Indeed, as we explained in our openingletter, this Court's past practice points strongly toward the conclusion that initiativeproponents do have the authority to represent the State's interest in an initiative'svalidity. See, e.g., Strauss v. Horton, 207 P.3d 48,69 (Cal. 2009).4. San Francisco does not take a position on whether this Court should acceptthe Ninth Circuit's certification request, but instead argues that if this Court accepts therequest it should reformulate the question presented. We respectfully submit that noreformulation is necessary. The Ninth Circuit's Order demonstrates that the question ithas requested this Court to answer is carefully and properly formulated in light ofcontrolling principles of federal standing law. No reformulation is necessary for thisCourt to engage in a complete and detailed analysis of the interests and authority ofinitiative proponents under California law.

CONCLUSIONFor these reasons, and for the reasons explained in our opening letter, this Court shouldaccept the Ninth Circuit's request to answer the certified question.


5/7

Supreme Court of CaliforniaFebruary 4, 2011Page 5 of5Respectfully submitted,

Andrew P. Pugno Caries J. Coo erLAW OFFICES OF ANDREW P. PUGNO David H. Tho pson101 Parkshore Drive, Suite 100 Howard C. Nielson, Jr.Folsom, California 95630 Peter A. Patterson(916) 608-3065; (916) 608-3066 Fax COOPER AND KIRK, PLLC1523 New Hampshire Ave., N.W.Brian W. Raum Washington, D.C. 20036James A. Campbell (202) 220-9600; (202) 220-9601 FaxALLIANCE DEFENSE FUND151 00 North 90th StreetScottsdale, Arizona 85260(480) 444-0020; (480) 444-0028 FaxAttorneys for Defendant-Intervenor-Appellants Hollingsworth, Knight, Gutierrez, Jansson,

andProtectMarriage.comCc:United States Court of Appeals for the Ninth Circuit(Case No. 10-16696)Counsel ofRecordOffice of Governor Edmund G. BrownOffice ofAttorney General Kamala D. Harris
http:///reader/full/ProtectMarriage.comhttp:///reader/full/ProtectMarriage.comhttp:///reader/full/ProtectMarriage.com


6/7

PROOF OF SERVICE At the time of service I was over 18 years of age and not a party to this action. My businessaddress is 1523 New Hampshire Ave. N.W., Washington, D.C. 20036. On February 4, 2011, Iserved the following document:Reply Letter Regarding the United States Court of Appeals for the Ninth Circuit' s January 4,2011 Order Certifying a Question to the Supreme Court of California.I served the documents on the person or persons below, as follows:Office of the ClerkJames R. Browning CourthouseU.S. Court ofAppeals95 Seventh StreetSan Francisco, CA 94103 -1526United States Court ofAppeals forthe Ninth CircuitClaude F. KolmOffice of the Alameda County Counsel1221 Oak Street, Suite 450Oakland, CA 94612Attorneyfor Defendant Patrick 0 'ConnellJudy Welch WhitehurstOffice of the County Counsel500 West Temple Street, 6th FloorLos Angeles, CA 90012Attorney for Defendant Dean C LoganAndrew W. StroudKenneth C. MennemeierMennemeier Glassman & Stroud LLP980 9th Street # 1700Sacramento, CA 95814Attorneysfor Defendants ArnoldSchwarzenegger, Mark Horton, and LinetteScott

Tamar PachterDaniel PowellOffice of the Attorney General455 Golden Gate Avenue, Suite 11000San Francisco, CA 94102Attorneys for Defendant Edmund G. BrownTerry L ThompsonAttorney at LawPOBox 1346Alamo, CA 94507Attorneyfor Defendant-IntervenorWilliam Tam Hak-ShingDennis J. HerreraTherese StewartVince ChhabriaMollie Mindes LeeOffice of the City AttorneyCity Hall, Room 2341 Dr. Carlton B. Goodlett PlaceSan Francisco, CA 94102Erin BernsteinDanny ChouRonald P. FlynnChristine VanAkenOffice of the City Attorney1390 Market Street, i h FloorSan Francisco, CAAttorneys for Plaintiff-Respondent Cityand County ofSan Francisco


7/7

Office of the Attorney General1300 "I" StreetSacramento, CA 95814Office ofAttorney General Kamala D.HarrisTheodore OlsonMatthew McGillAmir C. TayraniGibson, Dunn & Crutcher, LLP1050 Connecticut Ave., NWWashington, DC 20036David BoiesRosanne C. BaxterBoies, Schiller, & Flexner333 Main StreetArmonk, NY 10504Ethan Douglas DettmerSarah Elizabeth PiepmeierEnrique Antonio MonagasGibson, Dunn & Crutcher, LLP555 Mission Street, Suite 3000San Francisco, CA 94105Jeremy Michael GoldmanBoies, Schiller& Flexner LLP1999 Harrison St #900Oakland, CA 94612

Office of the Governorc/o State Capitol, Suite 1173Sacramento, CA 95814Office ofGovernor Edmund G. BrownTheodore J. BoutrousChristopher Dean DusseaultTheano Evangelis KapurGibson, Dunn & Crutcher, LLP333 S. Grand AvenueLos Angeles, CA 90071Theodore H. UnoBoies, Schiller & Flexner, LLP2435 Hollywood BoulevardHollywood, FL 33020Joshua Irwin SchillerRichard Jason BettanBoies, Schiller & Flexner575 Lexington Ave., 5th FloorNew York, NY 10022

Attorneys for P l a i n t i f f s - R e ~ p o n d e n t s KristinM Perry, Sandra B. Stier, Paul T Katami,and Jeffrey J Zarrillo

The documents were served by enclosing them in an envelope or package provided by anovernight delivery carrier and addressed to the persons above. I placed the envelope or packagefor collection and overnight delivery at an office or a regularly utilized drop box ofthe overnightdelivery carrier.

1 declare under penalty of perjury under the laws of the State ofCalifornia that the foregoing istrue and correct.Executed on February 4,2011 at Washington, D.C.K.LJ..J.V ~ J I V Kelsie Hanson

Documents

Proponents' Reply Letter to CA Supreme Court